Stubley v. Western Australia, [2011] HCA 7, (2011) 275 A.L.R. 451 (March 30, 2011) High Court of Australia Evidence Bad character Propensity

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1 J.C.C.L. Case Notes 317 EVIDENCE OF PROPENSITY AND IDENTIFYING THE ISSUES Stubley v. Western Australia, [2011] HCA 7, (2011) 275 A.L.R. 451 (March 30, 2011) High Court of Australia Evidence Bad character Propensity A. Background The appellant, Dr Alan Stubley, was a psychiatrist who had engaged in private practice between 1965 and 2000, and who had also consulted as a psychiatrist at the Royal Perth Hospital from about 1966 to He was charged with seven counts of rape, one count of attempted rape and six counts of unlawful and indecent assault, in respect of two women, J.G. and C.L., the prosecution alleging that he had engaged in sexual activity with them without their consent whilst they were his patients, in J.G. s case between 1975 and 1978 and in C.L. s case between 1977 and The offences were said to have occurred in his consulting rooms during appointments scheduled for psychotherapy. The appellant was also alleged to have engaged in sexual activity both indecent touching and sexual intercourse with three further women, L.B., M.M. and A.W. This was also alleged to have occurred without their consent whilst they were his patients, and was also said to have taken place in his consulting rooms. He was not charged with any offences relating to this alleged conduct, but the prosecution applied to adduce evidence of these allegations as propensity evidence. His counsel informed the trial judge that he accepted that some or all of the sexual activity with J.G. and C.L. had occurred, but that he maintained that it had all been consensual. The prosecution s application was granted, and at the appellant s trial L.B., M.M. and A.W. were duly called to give live evidence of the appellant s conduct. At the conclusion of this trial, the appellant was convicted of 10 of the 14 counts, and sentenced to 10 years imprisonment. He appealed against both conviction and sentence to the Court of Appeal of Western Australia, challenging the admissibility of the evidence of L.B., M.M. and A.W. That court, by a majority of two to one (Owen and Buss JJ.A., Pullin J.A. dissenting), dismissed his appeal against conviction, but reduced his sentence to six years imprisonment. He was subsequently granted special leave to appeal against that dismissal to the High Court of Australia (Gummow, Heydon, Crennan, Kiefel and Bell JJ.).

2 318 Journal of Commonwealth Criminal Law [2011] B. Legislation The disputed evidence from L.B., M.M. and A.W. was admitted under section 31A of the Evidence Act 1906 (Western Australia), which provides: 31A. Propensity and relationship evidence (1) In this section propensity evidence means (a) similar fact evidence or other evidence of the conduct of the accused person; or (b) evidence of the character or reputation of the accused person or of a tendency that the accused person has or had; relationship evidence means evidence of the attitude or conduct of the accused person towards another person, or a class of persons, over a period of time. (2) Propensity evidence or relationship evidence is admissible in proceedings for an offence if the court considers (a) (b) that the evidence would, either by itself or having regard to other evidence adduced or to be adduced, have significant probative value; and that the probative value of the evidence compared to the degree of risk of an unfair trial, is such that fair-minded people would think that the public interest in adducing all relevant evidence of guilt must have priority over the risk of an unfair trial. (3) In considering the probative value of evidence for the purposes of subsection (2) it is not open to the court to have regard to the possibility that the evidence may be the result of collusion, concoction or suggestion. This provision was inserted by section 13 of the Criminal Law Amendment (Sexual Assault and Other Matters) Act 2004 (Western Australia), and replaced the common law rule that similar fact evidence was inadmissible unless, when considered with the other evidence in the prosecution s case, there was no reasonable view of that evidence that was consistent with the innocence of the accused. C. Discussion The court noted that the explanation of significant probative value in section 31A(2)(a) of the 1906 Act put forward by Steytler P. in the Court of Appeal of Western Australia in Dair v. Western Australia (2008) W.A.R. 413 (viz. that the evidence would have to be such as could rationally affect the assessment of the probability of the

3 J.C.C.L. Case Notes 319 relevant fact in issue to a significant extent) was accepted, and accordingly considered the issue on that basis. It said that it was relevant that the question of whether the appellant had engaged in the sexual activity alleged by J.G. and C.L. was not a live issue at trial and that the trial had been conducted from the outset on the basis that that activity was not disputed, as this was material to the consideration of the admissibility of the disputed propensity evidence or relationship evidence. Since it was accepted that the appellant had had sexual relationships with patients, the probative value of that evidence to demonstrate that he had done so was no longer significant. The court proceeded to consider other issues to which it had been suggested the evidence was relevant. One suggestion was that the evidence demonstrated the appellant s capacity to exploit his power and ascendancy by manipulating women, without violence or express threats, to acquiesce in sexual activity with him without their consent. However, the court noted that the prosecution case was that J.G. and C.L. had not consented or their consent had been obtained by threats or intimidation. It held that, since L.B., M.M. and A.W. had given no evidence as to threatening or intimidating conduct, their evidence could not rationally affect the assessment of the likelihood that the consent of J.G. or C.L. had been obtained by such conduct, and that proof that the appellant had a tendency to engage in grave professional misconduct by manipulating his younger, vulnerable, female patients into having sexual contact with him could not rationally affect the assessment of the likelihood that J.G. or C.L. had not consented to such contact. The court also considered the issue of why J.G. and C.L. had not made timely complaints and had continued to attend on the appellant for treatment, which was relevant to the credibility of their evidence that they had not consented to their sexual contact with the appellant. However, doubting in any event whether the evidence could be admissible in order to support acceptance of the plausibility of J.G. and C.L. s accounts in this respect, it held that the differing accounts put forward by all five women were incapable of bearing rationally on the assessment of these accounts. Finally, it considered the question of whether, if the jury were satisfied that J.G. or C.L. had not consented to any sexual contact, they could be satisfied that the appellant had not reasonably believed that they had consented. However, it concluded that, although the evidence was capable of proving a pattern of sexual misconduct between the appellant and younger, vulnerable, female patients, and the appellant s psychological ascendancy over those patients, these factors were not inconsistent with him holding an honest belief that the victims of his attention were consenting to the conduct, and that,

4 320 Journal of Commonwealth Criminal Law [2011] absent any feature of the evidence tending to demonstrate his awareness that his manipulation of his patients had not succeeded in procuring their consent, proof of an imbalance of power did not rationally bear on this issue. D. Outcome By a majority of four to one (Gummow, Crennan, Kiefel and Bell JJ., Heydon J. dissenting), the appellant s appeal against conviction was allowed. However, his counsel s submissions that his convictions should be set aside and verdicts of acquittal entered were not accepted, and the court directed a new trial. E. Comment In England and Wales, the admission of propensity evidence is governed by the bad character provisions in Chapter 1 of Part 11 of the Criminal Justice Act They provide, inter alia, that evidence of the defendant s bad character is admissible if... it is relevant to an important matter in issue between the defendant and the prosecution (s.101(1)(d)) and that the matters in issue between the defendant and the prosecution include (a) the question whether the defendant has a propensity to commit offences of the kind with which he is charged, except where his having such a propensity makes it no more likely that he is guilty of the offence; (b) the question whether the defendant has a propensity to be untruthful, except where it is not suggested that the defendant s case is untruthful in any respect (s.103(1)). Such evidence, however, must be excluded if it appears to the court that the admission of the evidence would have such an adverse effect on the fairness of the proceedings that the court ought not to admit it (s.101(3)). In Northern Ireland, Part II of the Criminal Justice (Evidence) (Northern Ireland) Order 2004 (S.I No (N.I. 10)) makes identical provision. However, although the English provisions are on the face of it quite straightforward, their application has proved somewhat problematic, and, in contrast to the logical and analytical approach demonstrated in Stubley, the English courts have on occasion taken a rather broader view as to the admissibility of evidence said to go to propensity. For example, in R. v. Miller [2011] Crim.L.R. 79 ([2010] EWCA Crim. 1578), the Court of Appeal of England and Wales (Leveson L.J., Tomlinson and Davis JJ.) held that a conviction for rape committed as part of a gang by the then-16-year-old appellant against a 15-year-old girl was admissible as evidence of propensity in the now-25-year-old appellant s trial for rape of his 11-year-old niece at his mother s house. Rather than give that conviction s relevance to the issues the detailed consideration shown in this case, the court

5 J.C.C.L. Case Notes 321 held that the mere fact that the allegations both involved an underlying abuse of power was sufficient to justify the conclusion that the previous conviction was admissible as evidence of propensity. This broad approach has been compounded by a tendency on the part of the English courts to treat evidence as admissible to demonstrate propensity, when in reality it is both relevant and admissible as going to a far more important issue. For instance, in R. v. Woodhouse, 173 J.P. 337 ([2009] EWCA Crim. 498), the Court of Appeal of England and Wales (Rix L.J., Calvert-Smith J., Judge Paget Q.C.) held that a police caution administered after the appellant had touched the penis of a 13-year-old boy was admissible as propensity evidence at trial on an allegation that he had touched the penis of another 13-year-old boy; the evidence was in fact far more relevant simply to the issue of accident, the appellant s defence having been that the touching had not been intentional. Likewise, that court (Pitchford L.J., Owen J., Judge Beaumont Q.C.) in R. v. Hamidi and Cherazi [2010] Crim.L.R. 578 ([2010] EWCA Crim. 66) held that evidence that the appellant had been accused of involvement in a missing trader fraud (a species of fraud that has been rife in the United Kingdom and which has resulted in huge losses of value added tax) was admissible as propensity evidence at his trial on an allegation of involvement in a later of the same type; similarly, the evidence was instead relevant more to the issue of knowledge, his defence having been that he had been an innocent dupe for a second time. However, there are signs of increasing clarity, and in R. v. D.; R. v. P.; R. v. U. [2011] 4 All E.R. 568 ([2011] EWCA Crim. 1474), the same court (Hughes L.J., Roderick Evans and Gloster JJ.) acknowledged that evidence that a defendant accused of sexual abuse of a child had been in possession of indecent images of children was relevant to the issue of whether he had a sexual interest in children. It correctly pointed out that, although such evidence was not evidence that he had demonstrated a practice of committing offences of sexual abuse or assault, such a sexual interest was a relatively unusual character trait and did make it more likely that the allegation of the child complainant was true, the force of the evidence deriving from the unlikelihood of coincidence. It is to be hoped that this is an indication that the more logical and considered approach exemplified by the High Court of Australia in Stubley is gradually gaining ground throughout Commonwealth jurisdictions. PETER FITZGERALD. * * M.A. (Cantab.), LL.B., Barrister (Middle Temple).